LexSAMEER SINGH AND ANOTHER versus ABDUL RAB AND OTHERS
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A B [2014] 10 S.C.R. 1004 SAMEER SINGH AND ANOTHER V. ABDUL RAB AND OTHERS (Civil Appeal No. 9699 of 2014) OCTOBER 14, 2014 [DIPAK MISRA AND V. GOPALA GOWDA, JJ.] Constitution of India, 1950: c Art. 227 - Scope of - Order of executing court holding the application under 0.21, rr.97, 99 and 101 as not maintainable on the ground that the said court had become functus officio - The said order cannot earn the status of a decree as there has been no adjudication - If a subordinate 0 court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, such an order is revisable u/s 115 CPC and after amendment w.e.f 1. 7.2002, the said power is exercised under Art. 227 - Appellants had rightly invoked the jurisdiction of High Court under Art. 227 assailing the order passed by executing court on the E foundation that it had failed to exercise the jurisdiction vested in it - Code of Civil Procedure, 1908 - s. 115. Code of Civil Procedure, 1908: F 0. 21, rr. 99 to 103- Execution of ex-parte decree - Power of executing court - Application filed by stranger claiming right, title and interest in the property subject matter of execution - Execution court has the authority to adjudicate all the questions pertaining to right, title or interest in the G property arising between the parties - It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. Allowing the appeal, the Court H 1004 SAMEER SINGH v. ABDUL RAB 1005 HELD: 1.1. The executing court has the authority to A adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has B been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire c enquiry has to be conducted by the executing court. [para 21] [1018-F-H; 1019-A] Babula/ v. Raj Kumar and Others 1996 (2) SCR 763 =1996 (3) SCC 154; Ghasi Ram and Others v. Chait Ram Saini and others 1998 (3) SCR 863 = 1998 (6) D SCC 200; and Ram Kumar Tiwari and Others v. Deenanath and Others AIR 2002 Chhattisgarh 1; S. Rajeswari v. S.N. Kulasekaran and Others 2006 (3) SCR 610 = 2006 (4) SCC 412; Noorduddin v. Dr. K.L. Anand 1994 (4) Suppl. SCR 322 =1995 (1) SCC 242; Bhan war Lal v. E Satyanarain and Another 1994 (4) Suppl. SCR 208 =1995 (1) SCC 6; Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another 1997 (1) SCR 463 =1997 (3) sec 694- referred to. 1.2. Rule 103 of 0.21, CPC clearly stipulates that when an application is adjudicated upon under r.98 or r.100 the said order shall have the same force as if it were a decree. Thus, it is a deemed decree. If a court declines F to adjudicate on the ground that it does not have G jurisdiction, the said order cannot earn the status of a decree. In the instant case, the executing court has expressed an opinion that it has become functus officio and, as such, it cannot initiate or launch any enquiry. The appellants had rightly invoked the jurisdiction of the High H 1006 SUPREME COURT REPORTS [2014) 10 S.C.R. A Court under Art. 227 of_ the Constitution assailing the order passed by the executing court on the foundation that it had failed to exercise the jurisdiction vested in it. [para 21) [1019-A-D] 8 1.3. Whether the executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its C jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order u/s 115 of the Code is revisable. After the amendment of s.115, C.P.C. w.e.f. 1.7.2002, the said power is exercised under Art. 227 of the Constitution. [para 22) [1019-E-F; 1020-A] D Surya Dev Rai v. Ram Chander Rai and others 2003 (2) Suppl. SCR 290 = 2003 (6) SCC 675; Joy Chand Lal Babu v. Kamalaksha Chaudhury and others AIR 1949 PC 239
Excerpt shown. Read the full judgment & AI analysis in Lexace.